Vuyo Zungula, leader of the African Transformation Movement (ATM), indicated in March that a Foreign Agents Bill would be placed before parliament in July. Following up on a promise made last year, this private member’s bill will, in Zungula’s words, “remove all the players that are not operating in the country in the best interests of SA citizens”.
According to Zungula, the bill will target foreign-funded nongovernmental organisations (NGOs) and civil society organisations (CSOs) that routinely act as “agents of foreign interests” and are “hell-bent on keeping SA undeveloped”. Drawing attention to oil and gas in a series of statements and interviews, he has claimed that foreign-funded NGOs are subverting the will of South Africans by using the courts to stop exploration and drilling. It is, he says, time for South Africans to reclaim their sovereignty because “the people must govern, not foreign- funded NGOs”.
Anyone interested in the maintenance and deepening of SA’s democracy should be chilled to the bone by the bill for, as Human Rights Watch notes, “foreign-agent-style laws have become a preferred instrument for authoritarians to extinguish critical voices, shield their rule from scrutiny and strengthen their hold on power”. Foreign agent laws, many adopted within the last decade, are used by governments in Russia, China, Hungary, Georgia, India and Kyrgyzstan to stigmatise and discredit NGOs and CSOs and reduce their ability to hold governments to account for their actions.
While this bill is being introduced by the ATM, it is highly likely that senior ANC members in the government will be delighted if such a bill passes into law. David Mahlobo, deputy minister for water & sanitation, has said that some NGOs actively work to “destabilise the state”, while minerals minister Gwede Mantashe has spent years saying that foreign-funded NGOs have an “antidevelopment” agenda. Zungula’s repeated focus on oil and gas in discussing the bill is certainly an attempt to appeal to Mantashe.
That African countries rich in oil and gas have not passed the benefits on to citizens (Nigeria, Angola and so on) but have harboured spectacularly rich kleptocratic elites who have benefited magnificently from oil and gas is perhaps the point of Zungula’s bill. Now that the ATM appears to have jumped into bed with Jacob Zuma’s MK party, a Foreign Agents Act would certainly ease State Capture 2.0.
International experience shows that these repressive laws designed to narrow democratic space in the interests of governing elites:
- Often include vague definitions of “foreign funding”, “foreign influence” and “political activity”. Such vagueness enables authorities to act arbitrarily against NGOs or CSOs.
- Impose very harsh and onerous monitoring, reporting and auditing requirements on NGOs and CSOs, resulting in organisations having to redirect resources into compliance rather than focusing on their core activities.
- Introduce extremely harsh punishments for noncompliance that experience has shown can lead to organisations collapsing.
- Attempt to delegitimise organisations, which can lead to distrust of CSOs and NGOs and which is a very dangerous reality in light of the threats already faced by human rights and environmental defenders.
Parliamentarians must, therefore, apply their minds seriously to the bill. They should bear in mind how it is likely to clash with several aspects of the constitution’s bill of rights — freedoms of opinion, expression, occupation and association, political rights and access to the courts.
They should also consider how these foreign agent laws breach various international declarations and treaties that SA is a signatory to. These include the UN International Covenant on Civil and Political Rights (1966) and the Declaration on Human Rights Defenders (1998), while the right of NGOs and CSOs to receive funds from domestic and foreign sources has been repeatedly asserted by the UN special rapporteur on the rights to freedom of peaceful assembly and of association.
Parliamentarians should also reflect on what they stand to lose from the imposition of a Foreign Agents Act. They should recall Nelson Mandela’s assertion that “nongovernmental organisations played an outstanding role during the dark days of apartheid”. They should also consider the essential role that they have played since the end of apartheid — forcing the mass rollout of ARVs, which saved countless SA lives; cementing the right of landless South Africans to housing; overturning unjust “slum” laws; making sure schoolbooks are delivered and school infrastructure improved; highlighting the appalling prevalence of gender-based violence; fighting against forms of discrimination; and preventing Zuma’s attempt to bankrupt SA by spending
R1-trillion on unnecessary and unwanted Russian nuclear power stations.
These are but a few examples of how NGOs and CSOs have played crucial roles in deepening and strengthening SA’s democracy. A vibrant civil society is clearly essential to the meaningful functioning of a democracy.
Laws similar to that being proposed in SA have not just spread in repressive regimes in Europe. A report from the political rights organisation Freedom House notes that at least a dozen African countries have introduced polices to constrain the freedom of CSOs, while high-level political attacks on foreign-funded CSOs have recently occurred in Kenya and Uganda. Civicus, a global alliance of civil society organisations, notes that the space for CSOs to operate in Southern Africa is shrinking, in Angola, Mozambique and Zimbabwe in particular.
How SA parliamentarians respond to the Foreign Agents Bill will be a real test of our democracy. Will they follow their counterparts in other parts of the world and close down civil society space, or will they see it for what it is, a crass, grubby attempt to stifle civil society oversight of government in the interests of a narrow political elite intend on enriching itself to the detriment of citizens?
Dr Overy, a freelance researcher, writer and photographer, is a research associate at Environmental Humanities South, University of Cape Town.
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